This view of the law disposes also of that point in the argument, claiming for the postmaster an exemption from the suit of the plaintiff, upon the ground that he was called upon, in the act which he did, to exercise discretion and judgment. In Kendall v. Stokes, 3 How. 97, 98, 11 L. Ed. 506, will be found this court's exposition upon that subject, with the leading authorities in support of it. The difference between the two must at all times be determined by the law under which an officer is called upon to act, and by the character of the act. It is the law which gives the justification, and nothing less than the law can give irresponsibility to the officer, although he may be acting in good faith under the instructions of his superior of the department to which he belongs. Here the instructions exceed the law, and marks and signs of themselves, without some knowledge of their meaning, and the intention in the use of them, are, as we have said, neither memoranda nor writings. Tracy v. Swartwout, 10 Pet. 80, 9 L. Ed. 354.

by a Nyct

But it is said that the courts of New York had not jurisdiction to Cd this cabe tried try the case. The objection may be better answered by reference to the laws of the United States, in respect to the service to be rendered in the transmission of letters and newspapers by mail, and by the Constitution of the United States, than it can by any general reasoning upon the concurrent civil jurisdiction of the courts of the United States and the courts of the states, or concerning the exclusive jurisdiction given by the Constitution to the former.

of trouer.

The United States undertakes, at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender, or be paid when either reach their destination, by the person to whom they are addressed. When tendered by the latter or by his agent, he has the right to the immediate possession of them, though he has not had before the actual possession. If then they be wrongfully withheld for a charge of un- It was au act lawful postage, it is a conversion for which suit may be brought. His right to sue existing, he may sue in any court having civil jurīsdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court. Now the courts in New York having jurisdiction in trover, the and so within case in hand can only be excepted from it by such a case as this as having been made one of exclusive jurisdiction in the courts of the yo United States, by the Constitution of the United States. That such is not the case, we cannot express our view better than Mr. Justice Wright has done in his opinion in this case in the Court of Appeals. After citing the second section of the third article of the Constitution, he adds: "This is a mere grant of jurisdiction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the state courts of concurrent jurisdiction in any of the specified cases in which concurrent jurisdiction existed prior to the adoption of the Constitution. The

no Conste

reserv" of the matter to us.

apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary." 36 We will add that the legislation of Congress, immediately after the Constitution was carried into operation, confirms the conclusion of the learned judge. We find, in the twenty-fifth section of the judiciary act of 1789, under which this case is before us, that such a concurrent jurisdiction in the courts of the states and of the United States was contemplated, for its first provision is for a review of cases adjudicated in the former, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity."

We are satisfied that there was no error in the decision of the Court of Appeals in this case, and the same is affirmed by this court.

36 See Teall v. Felton, 1 N. Y. 537, 546, 49 Am. Dec. 352 (1848): "But the counsel for the plaintiff in error contends that this is a case which the state courts did not hold cognizance of at the adoption of the federal Constitution, for the reason that the Post-Office Department not only never in any manner or at any time pertained to the state or colony, but is entirely the creation of the national statute: that it owes its existence exclusively to the Constitution and national legislature; and hence that the federal judiciary has exclusive jurisdiction in all matters growing out of or pertaining to it. That the post office is a federal institution no one will deny; but it is difficult to perceive how the premises of the counsel sustain the conclusion at which he arrives. The same reason would apply with equal force in case of a suit being brought against a collector of the customs. The present action is one coeval with the common law, to enforce a right to property, alleged to have been wrongfully converted by the defendant. This remedy for a tortious conversion has always been complete in the state courts. It does not follow that, because the defendant may have been acting under a law of Congress in withholding the newspaper, and consequently may defend himself against the alleged conversion, that jurisdiction of the subject-matter is exclusively given or acquired by the federal courts under such law. The plaintiff is not seeking redress under the post-office laws, or attempting to enforce a penalty specifically imposed by them on the postmaster for a fraudulent act pertaining to his official duty. She simply seeks to recover in an appropriate common-law tribunal, competent to afford a remedy, and in a form of action more ancient than the federal Constitution or laws, the value of her property. If the defendant can maintain that by the post-office laws, or any constitutional act of the national legislature, there was no legal conversion, his defense will be complete. But it is an incorrect conclusion that because a law of Congress prescribes the duties of an officer of the federal government, and in a proper case he may thereunder defend his acts, for such reason the state courts are ousted of jurisdiction. Upon the whole. I have no doubt that the justice had jurisdiction in the present case; and, whilst asserting this jurisdiction, I would not be understood as inclined to throw the least obstacle in the way of a successful operation of the general government, or to encourage the exercise of state power having that tendency."

SECTION 36.—SAME—LIABILITY ON OFFICIAL BOND of Call C3312 at

UNITED STĀTES v. GRISWOLD et al.

(Supreme Court of Arizona, 1904. 8 Ariz. 543, 76 Pac. 596.)

54295 hate fdb 947-57

Actnus P. Masterr

his sureties on pl Action by the United States of America against Albert J. Griswoldbond, to recomm & and others. From an order sustaining a demurrer to the complaints, ou mail thre plaintiff appeals. Reversed.

SLOAN, J. The United States brought suit in the court below against Albert J. Griswold, postmaster at Nogales, Ariz., and L. W. Mix, Edward Titcomb, Theo. Gebler, and Fred. Herrera, sureties upon the official bond of said Griswold as postmaster aforesaid, to recover the sum of $1,863, alleged to have been lost from the mails after the same had been registered and deposited in the post office at Nogales by P. Sandoval & Co. It was alleged in the complaint that the registered package containing this money was stolen from the post office by reason of the negligence of the postmaster. The defendants in the action demurred to the complaint upon the ground that the facts therein stated did not constitute a cause of action in favor of plaintiff and against the defendants. The demurrer was sustained by the trial court, and from this order and ruling of the court the United States has appealed.

L

negl. of Pj.

Hu

The first question presented is: Does the loss of the registered the loss fell wi package, occasioned by the negligence of the postmaster, amount to the conds of the

a breach of the bond given by such postmaster, under section 3834, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2610)? This section provides that "every postmaster, before entering upon the duties of his office, shall give bond, with good and approved security, and in such penalty as the Postmaster General shall deem sufficient, conditioned for the faithful discharge of all duties and trusts imposed on him either by law or the rules and regulations of the department." The bond in this instance, given by Griswold, contained the condition required by said section, being in all respects as required by law and the rules and regulations of the Post-Office Department having the effect of law. Section 3926, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2685), authorizes the Postmaster General to establish a uniform system of registration conditioned that the Post-Office Department, or its revenue, should not be liable for the loss of any mail matter on account of its having been registered. It is a part of the duty of the postmaster to safely keep and to transmit the mails, including registered packages, which may be given into his hands as such postmaster. His oath of office requires him to faithfully perform the duties of his office.

bond

Rule: on heable for It is a general proposition that a public officer, having ministerial failure to perform duties to perform, is liable for any injury occasioned by him in conol duty 4 min sequence of his failure to perform his official duty. Raynsford v. фе

isterivity y

Who may sue in

Phelps, 43 Mich. 344, 5 N. W. 403, 38 Am. Rep. 189. Thus it has. been held that a postmaster is liable in damage for conversion of mail matter at the suit of the person injured. Teal v. Felton, 12 How. 284, 13 L. Ed. 990. It has also been held that a postmaster is liable for the loss of a letter containing money, occasioned by his negligence, at the suit of the sender. Danforth v. Grant, 14 Vt. 283, 39 Am. Dec. 224. If a postmaster can be held responsible in damages for loss of mail matter occasioned by his negligence, it must be for the reason that he has been derelict in his duty as such officer. Such a failure, under the condition of his official bond that he will "faithfully discharge the duties of his office," amounts to a breach of the bond; and in such a case the liability of the principal is the measure of the liability of the surety. All bonds given by government officials are to be construed as though executed and to be performed at Washington, and hence are to be construed according to the rules of the common law, except where these rules have been changed or modified by statute. Cox v. United States, 31 U. S. 172, 8 L. Ed. 359.

a

At common law suit upon an official bond must be brought and the bond. Atbh. & recovery had in the name of the obligee. There is no congressional suit we name of suits brought by or in the name of the United States, as there is in obligee mmostat case there here charges et his own name and for his sole use, suit on the marshal's bond for a

statute modifying the common-law limiting the liability of sureties to

the case of bonds given by United States marshals. In the latter case there is statutory authority authorizing any person to bring, in

breach of its conditions. Section 784, Rev. St. U. S. (U. S. Comp. St. 1901, p. 607). It follows, therefore, that P. Sandoval & Co. Canould not maintain a suit on the postmaster's bond in their own name to recover for the loss of the registered package.

as bailee recount

holdy
of to owns for

in excess

mailer.

Can the United States maintain such a suit? It has been held

that a bailee may sue and recover in his own name damages caused to the subject of the bailment through the negligence of a third person. In such case the measure of damages is not limited to the bailee's special interest in the property, but he may recover for all damages, holding the amount so recovered in excess of his own interest in trust for his bailor. Woodman v. Nottingham, 49 N. H. 387, 6 Am. Rep. 526; McGill v. Monette, 37 Ala. 49; Rindge v. Coleraine, 11 Gray, 159. The United States, in this instance, was the bailee and intrusted with the safe-keeping of the registered package deposited by P. Sandoval & Co. Under section 3926, Rev. St. U. S. (U. S. Comp. St. 1901, p. 2685), the sender of first-class registered matter is entitled to be indemnified out of the postal revenues for loss in the mails to the extent of $10 for any one registered pack

age, or the actual value thereof when that is less than $10. The government, in accepting a registered package, becomes not only the bailee of the sender, but assumes a liability to its bailor by reason of the bailment.

Even should we therefore construe the liability of the sureties

has aspect in its strictest sense, the government, as a bailee, would have a right al leaby so a

to recover to the extent of its special interest, which would be meas

ured by the extent of its liability to the sender of the package. If special wet as the government, therefore, has a right to sue to recover the loss it balee. sustains as bailee, under the general doctrine above stated, its recovery cannot be confined to such special interest, but may cover the entire loss sustained both by it and its bailor. Not only so, but we think it is the duty of the United States to protect the public against its own officers even to the extent of enforcing every legal right which it possesses, whether criminal or civil. To hold that the United States may not maintain an action upon the bond of the postmaster for the recovery of the entire loss sustained by the negligence of the postmaster because it was not obligated to return or make good to P. Sandoval & Co. an amount exceeding $10, would be to deny to the latter any redress unless the postmaster be personally responsible to the extent of such loss.

We are convinced that in a case like the one at bar the United States may sue for the benefit of the injured party and recover from the sureties upon the official bond of the postmaster the full amount of such loss, and that it is the clear duty of the government to bring such action. At common law such suits were usually brought "for the use of" or "at the relation of" the injured person. It is not essential, however, that there be any formal declaration of such use; its only purpose being to protect the interest of the beneficiary against the nominal plaintiff. Tedrick v. Wells, 152 Ill. 217, 38 N. E. 625; Clay Fire & Marine Ins. Co. v. Huron Salt & Lumber Mfg. Co., 31 Mich. 346. In the complaint the facts sufficiently show that the United States is suing for the amount of the loss suffered by P. Sandoval & Co. and for their benefit, and it will not be assumed that the government will appropriate the amount recovered to its own use, but it will be assumed that it will perform its duty by paying to P. Sandoval & Co. the amount so recovered.

We hold that the complaint stated a cause of action, and the judgment will therefore be reversed, and the cause remanded for further proceedings.37

KENT C. J., and DOAN, J., concur.

37 See Howard v. United States, 184 U. S. 676, 687, 690, 22 Sup. Ct. 543, 46

L. Ed. 754 (1902). Such on the bond of a clerk of Ch tho no express words showed that the bond was intended for the benefit of private ch's it was lo construed, * also a priv.ety syures in the clerk's misapprop of wh the of has deposited with him under the sancts of theat in a pending case, was allowed to maculata sect in the name of the us for his own benefit the no express ponsor other stat gave such porro in ca ica of sunt on marshalls bond

Chole 961 obligatory on Prin sureties to force State of Cal & to for the close with's use 053/ 44, use obenefit of all persons who may be injured or aggrieved by the wrongful act or default fouch or in his off capacity * any person soinjured affeved may bring suit on such bond husown'n ame wor

& &